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Stop & Search – the powers and the problems. Is Boris getting it right?

Please write down two column headings.  The Pros and Cons of ‘stop and search’.  Now make your list.

Under which column did you put the following: a recipe for unrest, building communities, getting serious about crime; standing up to the drug pushers; stamping down on knife crime; making the streets safer ; stereotyping the innocent; fighting terrorism; protecting our ethnic communities; guaranteeing religious freedom; building trust and respect between the police and the community, taking back ownership of our communities?

Now look at the two columns, add anything else which you think is relevant. Which is the longer column?

There are few people who believe that giving police officers the right to ‘stop and search’ is fundamentally wrong and should never be permitted but the process must not abused. We need to see a positive result not just in intercepting crime and criminals but also in building trust and care both within communities and between the public and the police.

Whilst certain groups may actively seek to damage relations between police and public and hoping to create a state of anarchy, the vast majority just want to be fair to all but without  becoming easy targets for criminals..

Clearly we need to get stabbings and shootings together with the drugs gangs so often associated with them, off our streets. We need to prevent crime before it happens and make gang membership ‘seriously uncool’ but how do we achieve this and how do we strike a balance to ensure that the innocent are not stereotyped or harassed by overzealous police officers?

These police officers, the public’s frontline, are under daily threat when they intervene to do their duty and protect members of the public. They have to deal with pressure situations and engage with people who do not think logically for whatever reason (often the result of taking drugs). In truth is it fair for us to be judging these officers against standard of perfection which is unrealistic, when carrying out their duties? The answer I suggest is that we must demand the very highest standards where stop and search is concerned.  Should a police officer seriously fail in their duty he or she will become national headlines. If they get it wrong there are serious consequences for the victim and within a community. This will be seized upon by those who miss no opportunity to make trouble and fan the flames of discontent rather than look towards peace-making. Regrettably in these days of instant news such problems can occur well before any kind of independent investigation and where an officer has actually done nothing wrong.

A report by StopWatch indicates that young people from ethnic minorities are being ‘subjected to relentless searching without a demonstrable legitimate purpose and sometimes several times a day’. However it is sometimes easy to forget that when an officer is not wearing the uniform they too are members of the public unarmed and going about their lawful business hoping that they are being protected. That protection comes from the legislators but will not work without a joint will to make it work.

Creating some new Utopia where families all live in a calm society without financial or other problems simply will not happen in the foreseeable future if ever.

Boris Johnson’s Government has increased powers to stop and search by allowing an additional 8000 police officers to conduct searches without reasonable suspicion if it is thought serious violence might occur. Pilot schemes are proposed. However it has not been greeted with enthusiasm everywhere. Community leaders say it does not address the real deep rooted problems, which include lack of education, lack of investment in local facilities and a lack of good, well paid jobs.

On the other side of the coin however it is reported that West Midlands police have refused to take up an offer of new powers to make it easier for officers to conduct stop and searches. The force was included in a pilot scheme to lower the level of authorisation needed for such searches, but data shows officers still sought approval from assistant chief constables.

So what are the powers to stop and search?

Section 60 of the Criminal Justice and Public Order Act 1994 relates to searches for offensive weapons or dangerous instruments which might be used or might have been used in incidents of serious violence. The police can stop and search people in a defined area during a specific time period if they believe with good reason that serious violence will take place and it is necessary to use the power to prevent such violence. But it is not carte blanche. It must be proportionate. Searches should reflect an objective assessment of the nature of the incident in question. The rationale for the search should be communicated to the person stopped. The public in the locality must be advised when the power is implemented e.g. by use of leaflets social media, signage etc.

To proceed under section 60 the authority of a senior officer is required and the officers carrying out the search are not required to have reasonable grounds to suspect that the individual person or vehicle is carrying a weapon. This is unlike other searches made under Code A of the Police and Criminal Evidence Act of 1984, Section 23 of the Misuse of Drugs Act 1971 and Section 43 of the Terrorism Act 2000 where searches can only be carried out if an officer has reasonable grounds for suspecting that he will find what he’s looking for.

The Government are trying to do away with the need for a senior officer to be involved. That would cut out time delay and avoid a cumbersome compliance process but would also place the responsibility upon officers of lower rank and experience. Will the buck stop in the right place if things go wrong?

If you are stopped under section 60 (or s47a of the Protection of Freedoms Act 2012 which now replaces some repealed sections of the Terrorism Act 2000), you should be told that the power has been authorised for that locality and the time period to which it relates. Be aware that a police officer may use reasonable force if necessary. A search will normally be carried out close to where you are stopped and you should only be detained for so long as is necessary to carry out the search. You can be asked to remove your coat jacket or gloves in public and under  section 60 remove anything that the officer believes you are wearing to conceal your identity on public. If you are arrested under the Terrorism Act you can be asked to remove headgear and footwear in public as well as your coat jacket and gloves. The officer may take you somewhere out of public view for example to remove headgear worn for religious reasons. Officers should be mindful of cultural sensitivities and normally although it is not compulsory the officer will be of the same sex as you should you be required to remove something beyond outer clothing

If a ‘Stop and Account’ procedure is used whether or not this is recorded depends on the policy of individual police forces. If they do use stop and account the police should record the date time and place when an individual was stopped, their ethnicity and the sofficer’s name and details. If you are stopped you should be given a copy or a receipt if the record was made electronically and you then have three months to make a complaint or obtain a paper or electronic copy of the record. If you are subsequently charged and obtain a copy of the custody record you are still entitled to a copy of the receipt.

On the question of ‘Stop and Search’ the balance which the government and its critics seek to strike is based on data but how reliable the data is we simply cannot know. How many with a valid complaint about the way they were treated by the police do not bother to complain either because they fear repercussions or because they want to draw a line? How many who have no cause to complain do so and of those that do, and how many are encouraged by pressure groups with an ulterior motive? Again we simply do not know.

How many officers believe that a crime might be committed or a weapon is being carried but simply made an honest mistake got it wrong? How many weapons were secreted away without the officer finding them? The data will of necessity be based on unreliable raw information however diligent the people gathering the information may be.

There does however seem to be an aim by the legislators to try to build in some safeguards despite the risk of human failure in applying those safeguards effectively. Safeguards built into the stop and search process include the fact that unless an individual matches a description of the suspect officers must not base the grounds for stopping and searching an individual on the basis of their appearance, previous criminal record,  age, disability, gender realignment, race and religion or sexual orientation. Proving an officer has breached this could be quite a challenge.

Individual Chief Constables can choose whether to give Police Community Support Officers (PCSO) powers to carry out some types of stop and search. In certain areas a PCSO can stop and search you for having alcohol in a public area designated as a no alcohol zone or if you are underage for having alcohol or tobacco and in some areas a PCSO can search you for anything which might injure them or help you to escape if they have asked you to wait for the arrival of a police officer. A  PCSO may also be able, in some areas, to search vehicles and their contents or anything that the vehicle driver or his passengers or pedestrians are carrying under section 47 of the Terrorism Act provided that the PCSO  is accompanied by and is being guided by a police officer.

Before your vehicle can be searched a police officer must take reasonable steps to make sure that you understand that you have to remain and be searched and tell you upon which law he relies,  the officer’s name and/or ID number, the police station from which he works, why  you  have been stopped and  what they’re looking for. You should be told of your right to a record of the search or a receipt.

Where there is a screening (knife) arch that is not regarded as stop and search and you cannot be forced to go through the arch but refusing may result in a full search or other police action.

What about a solution to the problem? Gangs are controlling some areas with knives being used to enforce heir will. But also many claim to be carrying knives as protection. How do we reconnect with the youths who have only known this life? Knives are not the only problem. Violence in general is all too common on our streets especially in the evenings and at weekends.  A moment of madness can lead to a lifetime of sadness.

Perhaps in concluding this blog I might mention the commonly held belief that many, albeit not all of the problems on the street, are drug related. Some years ago I appeared quite regularly on a daily radio show. One edition was about drugs and whether or not the laws should be relaxed.  I argued that the only way to effectively tackle the drug culture on our streets and in society was to make drugs legal. Not just class B drugs but also class A drugs. The purpose was to kill off the market and make it unprofitable for dealers.  By putting dealers and their suppliers out of business we would in effect take over control the drug trade. Not only would the criminal gangs be put out of business but we would have direct access to the addicts and be able to provide a direct line of help to those who needed  it. We would also be making a major inroad into making our streets safe. The one-hour programme went on and on. Clearly there were very vehement arguments on each side. Nobody approved or recommended drug taking but everybody wanted to find a solution. If the radio station reproduced that show now, I cannot help but wonder what proportion of the public would now look to legalise and provide drugs along with the help and opportunities for rehabilitation which could accompany such a programme.

This blog was written by:  Stephen Fox

DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.